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SUPREME COURT OF INDIA
Dipak Misra, [Prafulla C. Pant, JJ.
Vaish Aggarwal Panchayat – Appellant
Versus
Inder Kumar and Others – Respondents
CIVIL APPEAL NO. 2089 OF 2015 [Arising out of SLP(C) NO. 6919 OF 2008]
Decided On : 25-08-2015
Code of Civil Procedure, 1908 – Order VII Rule 11(d) – Res judicata – Appellant society filing suit no. 333/03 of 2001 for declaring the judgment and decree, dated 19.9.1998 passed in Civil Suit No. 806 of 1993 and the subsequent sale deed dated 30.1.2001 and mutation No. 2450 as illegal, null and void with the consequential relief of permanent injunction on the ground of fraud and collusion – Trial court framing issues but holding suit no. 333/03 of 2001 barred by res judicata – High Court affirming – Allegations in plaint entirely different – Issues framed were required to be tried – Trial court and High Court fell in error in applying res judicata. (Para 17)
(2004) 1 SCC 551; (2008) 12 SCC 661; (2006) 5 SCC 658 – Relied upon
(2006) 5 SCC 662 – Referred
CIVIL APPEAL NO. 2091 OF 2015
Code of Civil Procedure, 1908 – Order IX Rule 13 – Order and judgment of trial court and first appellate court well reasoned – High Court refusing to interfere – No infirmity. (Para 2)
Facts of the case:
Contesting respondent Nos. 1 and 2 – Inder Kumar and Yogendra Kumar, had filed a Civil Suit No. 806 of 1993 against Krishan Chand Gupta, respondent No. 5, and Ved Prakash, original respondent No. 3, for a decree of specific performance of agreement to sell in respect of land measuring 20 kanals with the consequential relief of permanent injunction.
The suit was decreed by judgment and decree dated 19.9.1998 and no appeal was preferred against the same.
Subsequently, the Respondent Nos. 1 and 2 sought execution of the decree.
During its pendency, the Petitioner, Vaish Aggarwal Panchayat (society), filed objections which were rejected. Thereafter, the Society filed an application for setting aside the judgment and decree dated 19.9.1998 and for stay of the execution, which was dismissed and the appeal filed by the society against the same was also dismissed.
In the meantime, a suit for declaration bearing no. 333/03 of 2001 was filed by the Society for declaring the judgment and decree, dated 19.9.1998 and the subsequent sale deed dated 30.1.2001 and mutation No. 2450 as illegal, null and void with the consequential relief of permanent injunction. The present respondent Nos. 1 and 2, who are defendants in the said suit, appeared, entered contest and after issues were framed moved an application under Order 7 Rule 11, Civil Procedure Code, for rejection of the plaint on the ground that the suit was barred by law. The trial Court allowed the application moved by the defendants therein.
The Society preferred an appeal which was allowed and the suit CS no. 333/03 of 2001 was ordered to be restored and tried.
Respondent Nos. 1 and 2 approached the High Court Civil Revision which was allowed and the order dated 15.6.2006 passed by the appellate court was set aside and the order of the trial court was restored.
Finding of the Court:
The plea of res judicata is founded on proof of certain facts and then by applying the law to the facts so found. It is, therefore, necessary that the foundation for the plea must be laid in the pleadings and then an issue must be framed and tried.
Result: CIVIL APPEAL NO. 2089 OF 2015 allowed and CIVIL APPEAL NO. 2091 OF 2015 dismissed.
JUDGMENT
Dipak Misra, J.
The facts relevant to be stated for the adjudication of the present appeal are that the contesting respondent Nos. 1 and 2 – Inder Kumar and Yogendra Kumar, had filed a Civil Suit bearing No. 806 of 1993 against Krishan Chand Gupta, respondent No. 5, and Ved Prakash, original respondent No. 3, for a decree of specific performance of agreement to sell in respect of land measuring 20 kanals with the consequential relief of permanent injunction.
2. The suit was decreed by the learned Civil Judge (SD), Kurukshetra by judgment and decree dated 19.9.1998 and no appeal was preferred against the same. Subsequently, the Respondent Nos. 1 and 2 sought execution of the decree and during its pendency, the Petitioner, Vaish Aggarwal Panchayat (society), filed objections claiming that it is the owner of the suit land by way of gift deeds dated 5.3.1997 and 6.3.1997 executed by Ved Prakash and Banarsi Dass. The objections filed by the Society were rejected vide order dated 4.11.2000. Thereafter, the Society filed an application for setting aside the judgment and decree dated 19.9.1998 and for stay of the execution, which was dismissed vide order dated 19.4.2001 and the appeal filed by the society against the same was also dismissed vide judgment dated 1.10.2004.
3. In the meantime, a suit for declaration bearing no. 333/03 of 2001 was filed by the Society for declaring the judgment and decree, dated 19.9.1998 passed in Civil Suit No. 806 of 1993 by the Civil Judge (SD), Kurukshetra, and the subsequent sale deed dated 30.1.2001 and mutation No. 2450 as illegal, null and void with the consequential relief of permanent injunction. The present respondent Nos. 1 and 2, who are defendants in the said suit, appeared before the trial court, entered contest and after issues were framed moved an application under Order 7 Rule 11, Civil Procedure Code (CPC), for rejection of the plaint on the ground that the suit was barred by law. The trial Court, vide order dated 7.12.2005 allowed the application moved by the defendants therein.
4. Aggrieved by the above said order, the Society preferred an appeal and the learned Additional District Judge allowed the appeal and the suit CS no. 333/03 of 2001 was ordered to be restored and tried.
5. Being dissatisfied with the said order in appeal, respondent Nos. 1 and 2 approached the High Court of Punjab and Haryana in Civil Revision No. 3695 of 2006 and the High Court allowed the revision petition and set aside the order dated 15.6.2006 passed by the appellate court and accordingly restored the order of the trial court.
6. Before the High Court the Society contended that it was not a party to the Civil Suit No. 806 of 1993 and hence, it was not bound by the judgment and decree dated 19.9.1998 and, therefore, it has a right to challenge the same through a suit; that mere filing of objections to the execution petition, and an application for setting aside the earlier judgment and decree will not bar the suit, which is based on a different cause of action; and that as the civil suit was fixed for evidence of parties after framing of issues by the Court and a specific issue regarding maintainability, which is a mixed question of fact and law, had been framed, the same could not have been summarily decided at that stage. The Society also contended that the judgment in the earlier suit was vitiated due to fraud and collusion.
7. The High Court while rejecting the arguments of the Society came to observe that the learned Additional District Judge took an erroneous view that since the issues had been framed and the parties had been put to trial the question regarding maintainability of the suit on the principle of res judicata could not have been decided. Thereafter, the High Court referred to the factual scenario in chronology. The said facts need to be stated. As per the High Court, admittedly, the judgment and decree dated 19.09.1998 in Civil Suit No. 806 of 1993 filed by Yogesh Kumar and Inde
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